Plea Deals Are Easy, Juries Are Hard

Under the Obama administration, the Department of Justice has turned the Foreign Corrupt Practices Act into a potent weapon against international corporate bribery. The statute forbids companies with U.S. ties from bribing foreign officials to gain a business advantage. Since 2009 the department has settled 58 corporate FCPA cases for a total of $4.4 billion. Last year prosecutors reached a record: They used the FCPA to extract guilty pleas and $1.6 billion in penalties from such companies as Alcoa, Avon Products, and the French power giant Alstom in just 10 settlements.

Most FCPA cases lead to settlements. Companies don’t want to risk the reputational damage of a public trial, and individuals don’t want to risk prison. Yet on the rare occasions in recent years when executives named as defendants have decided to fight the government, the Justice Department has been losing. Since September 2011, federal prosecutors have taken only four FCPA cases to trial. All of them ended in “debacles for the government,” says Mike Koehler, an assistant professor at Southern Illinois University School of Law who writes a well-trafficked blog called FCPA Professor.